What can Make your Work Enjoy Copyright Protection in Nigeria

Introduction

Copyright protection in this part of the world is highly discouraging and appears to be an area not deserving anything to write home about. Indeed, one of the purposes for making laws both at local and international levels for the protection of intellectual property rights is to encourage innovative thinking and provide incentives to the creators of works of intellectual property. In Nigeria however, these purposes are unfortunately defeated by the current state of the law, its regulation, and enforcement. The situation, therefore, calls for an approach to copyright protection from both legal and extra-legal standpoints. Apart from the legal perspectives and requirements, improved technology has provided several options for copyright protection, which will be discussed in this article.

It is disturbing to find out that the law regulating copyright in Nigeria, the Copyright Act 1999 which has been in force for over 20 years now has not been updated despite the immense transformations that information technology has brought to the world generally. It has therefore become necessary to look away from the law that is and explore the benefits of technological advancement in this aspect of human endeavour.

People sometimes ask questions on what to do to enable their works to enjoy copyright protection in Nigeria, maybe, a need for registration or a kind of; and also on what to do where copyright is discovered to have been infringed. This article is intended to bring to your knowledge the important information you need to have on copyright protection of works of Nigerian origin not only within Nigeria but also within cyberspace and in other countries together with whom Nigeria is a party to certain international copyright conventions. 

Meaning of Copyright Law

Copyright belongs to the field of Intellectual Property (IP) and is concerned with the protection of the work of human intellect namely literary and artistic works. These include writings, music, films, and works of the fine arts, such as paintings and sculptures, and technology-based works such as computer programs and electronic databases.

It is worthy of note that copyright protects works, that is the expression of thoughts, and not ideas. The law is not concerned with ideas because it would be highly impossible to prove what exists in the realm of human thought. As often said, even “the devil himself knows not the thought of man”. Thus, if you imagine an artwork or compose a song in your mind, it is not protected by copyright law until such is expressed. Any other person who has the same or similar thought/idea and expressed it by means protectable under copyright law will enjoy copyright protection. Copyright is thus a negative right, which affirms a person’s existing or inherent right by preventing the doing of certain acts by other persons. The essence is that other persons may do any of the prohibited acts only with the authorization of the copyright owner.

Eligibility (Conditions) for Copyright Protection

It may interest you to note that there is no requirement for registration under our law in Nigeria before a copyrightable work can be protected. The same thing applies to most countries that are parties to the Berne Convention which requires no formality as a condition for eligibility.

Nigeria is a party to the Universal Copyright Convention which under Article III (1) with specific reference to literary works, is to the effect that a literary work made in Nigeria for example will enjoy copyright protection in all countries that are parties to the Convention in so far that a copyright notice signified by the symbol “©” accomplished by the name of the copyright proprietor and the year of the first publication e.g. “© Olajide Adewale 2017” is placed in a conspicuous page of the work. I am sure you must have seen this inscription on one of the preliminary pages of books. It does not signify any registration of the work but only serves the purpose of it being protected in countries that are party to the Universal Copyright Convention. That is to say, even where such notice is excluded in a work ceteris paribus, it would not affect a lawful claim of right in Nigeria.

Moreover, the National Library, for the purpose of maintaining both local and international standards in literary publication and library services of Nigeria origin, requires those works to bear some designated code numbers that identify each one of the publications with Nigeria. One of these two brands of codes is required that the publication should bear: ISBN- International Standardized Book Number. This is for books. And ISSN- International Standardized Serial Number, for serials. These sets of numbers are controlled by the National Bibliographic Control Department of the National Library. These services are now available and accessible online through the ISBN website.

None of these numbers however confers copyright on the authors of those books. The owner or author may wish to, on receiving these international numbers for their books, notify the Nigerian Copyright Commission but they are not by law obliged to do so, and they will still receive protection under copyright law and even obtain the attention of the Commission when their rights are infringed.

Similarly, the law requires that publishers, printers, producers, and manufacturers of works keep a register of all works produced by them showing the name of the author, the title, the year of production, and the quantity of the work produced.

All these requirements do not confer copyright or stand as grounds on which copyright can be claimed. The law rather provides for five specific conditions a work must fulfil to enjoy the protection of copyright law.  The conditions are as follows:

1. Subject Matter Condition

First of all, for your work to enjoy copyright protection in Nigeria, the work must fall under any of the categories of copyrightable works under the Copyright Act. If your work does not belong to any of the categories, it had failed ab initio the condition of eligibility for protection. They are six categories which are as follows:

• Literary Works –

Works under this category are those (irrespective of literary quality) that can be described as or similar to – novels, stories and poetical works; plays stage directions, film scenarios and broadcasting scripts; choreographic works; computer programs; electronic databases; text-books, treatises, histories, biographies, essays and articles; encyclopedias, dictionaries, directories and anthologies; letters, reports and memoranda; addresses and sermons; law reports, excluding decision of courts; written tables or compilations.

• Musical Works

They are musical compositions, irrespective of musical quality and include works composed for musical accompaniment.

• Artistic Works

Regardless of artistic quality, this category includes any of the following works or works similar to paintings, drawings, etchings, lithographs, woodcuts; engravings and prints; maps, plans and diagrams; works of sculpture; photographs not comprised in a cinematograph film; works of architecture in the form of buildings models; and works of artistic craftsmanship.

• Cinematograph Films

This is the first fixation of a sequence of visual images capable of being shown as a moving picture and of being the subject of reproduction, and includes the recording of a soundtrack associated with the cinematograph film. In this category are movies, films, video clips of whatever length, etc.

• Sound Recordings

This is the first fixation of a sequence of sound capable of being perceived aurally and of being reproduced but does not include a soundtrack associated with a cinematograph film.

• Broadcasts

This is sound or television broadcast by wireless telegraph or wire or both, or by satellite or cable programmes and includes re-broadcast.

If your work belongs to any of the above categories, it has passed the first hurdle for protection under the law.

2. Sufficient Effort

With particular reference to literary, musical or artistic works, they are not eligible for copyright unless sufficient effort has been expended in making the work to give it an original character. What amount to sufficient effort will depend on the circumstance of each case. But there must be a substantial or real expenditure of mental or physical energy that the author has put into the work. The labour or skill exercised should not be negligible or commonplace.

To deserve protection therefore there must be evidence of imputation or exertion of some degree of skill, knowledge, creative labour, taste and judgment. Where the effort you exerted is only to copy a work from one or various sources, it is not sufficient effort intended by law and such work cannot be afforded protection. It is worthy of note that unauthorized copying or plagiarism is an offence under the law.

3. Originality

Still on literary, musical or artistic works and as a corollary to the above condition, the law requires that such sufficient effort expended on making the work must also be one capable of giving the work an “original” character. Pithily, this requirement posits that the work should originate from the author.

As noted under each of the categories, originality has nothing to do with the quality or merit of a work. The author of badly composed music is no less legally protected than that with the good one. The use of the word ORIGINALITY does not mean that the work must be the expression of original or initiative thought. The law does not require that the expression must be in an original or novel form. It may indeed spring up from another work but it should originate from the author. An expression of an idea that originates from the author. Let me note for example that even though a number of books, notes and statutes have been read and consulted before I came up with this article, the fact remains that the entire content, except where otherwise noted, originated from my mind. I have put into it a lot of effort to give it an original character in terms of its content and organisation.

4. Fixation

In addition to the above, before a work can be eligible for copyright protection in Nigeria, the law requires that it must be “fixed” in any definite medium of expression. The medium of expression may be one that is currently known or later to be developed, from which the work can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device. As at the time the law became effective, the most common mediums of expression of works of copyright were books, television, diskettes, digital versatile disks (DVDs), compact disks (CDs), wooden or clay materials etc. now we have computer application software, website, flash drives, mobile devices, mobile apps, E-book, YouTube, Podcast, Radio App, News Apps, social media platforms, etc. for fixation and expression of copyright works.   This article, for example, is being read online via this website as a medium of expressing my idea on this topic.

Needless to say again that copyright neither protects an idea nor the object by which such idea is expressed but the expression of the idea, to wit, the information the object passes. It has been held that where a person communicates an idea to another and that another person clothes the idea in an article, the copyright is in that other person. Article 2 of the WIPO Copyright Treaty 1996 provides that “Copyright protection extends to expressions and not to ideas, procedure, methods of operation or mathematical concepts as such.”

The requirement for fixation serves evidential value and makes the work enjoy permanency and accessible beyond the lifetime of the author. Hence, an idea you expressed on a piece of paper, in a jotter, posted on a social media platform or recorded on an electronic device would pass the fixation test whether it is published or not.

5. Consanguinity

This has to do with the relationship between the work and the author with Nigeria as a country. The specific areas of concern here are explained below:

a. Author’s Consanguinity

The author or one of the authors in the case of joint authorship must be a citizen of Nigeria or domicile in Nigeria at the time when the work is made. Where the author is a body corporate, it must be an entity registered under Nigerian law.

b. Work’s Consanguinity

For literary, musical or artistic work or a cinematograph film to be eligible for copyright protection, it must be first published in Nigeria. And in the case of sound recording, it must be first made in Nigeria.

The above requirements are not mutually exclusive. All of them with respect to the work concerned have to be met before protection can be conferred, enjoyed and enforced.

Some Practical and ICT-Enabled Options for Copyright Protection

The creation of copyright works these days has gone beyond writing a book or capturing movie scenes, delivering it to a publisher or filmmaker to publish and then straight to the stores for sale to the public. Millions of works of copyright are created and published daily online and improved technology has provided avenues such as YouTube, Netflix, Amazon, and numerous other platforms for the creation, expression and communication of works of copyright to the public. All these call for a new dimension for adequate protection of copyright. The following are suggested:

1. Make Your Work Protectable by Law

As mentioned before, copyright protection in Nigeria needs no registration formality for protection but practical compliance of the work with the prescriptions of the law. Those prescriptions are the conditions for eligibility explained above. All the conditions must be present. This is the starting point to give the copyright owner a shield and sword in case of any exigency.

2. Use Access Control Software

Where the work is published online, several application software options are available for use e.g. activating the options prohibiting copying, printing or downloading; use of passwords or paywall to control access to certain contents; creating copyright watermarks behind texts; adding a copyright notice to content; include copyright clause to the Terms of Use of the website, etc.

3. Publish the Work Via Secure Platform

Where the work is fit for such, the option of publishing the work through platforms that protect the work from copyright infringement and as well protect the economic right and benefits that the work generates could be used. Movies on Netflix, E-Books on Amazon, Google Play Store, etc. are popular examples.

4. Take Action Where Necessary

Where you discover your work has been infringed upon you must take action by making immediate consultation with an IP lawyer for appropriate advice. If it is online content, the following steps are recommended by WIPO:

(a.) Make screenshots or prints of all relevant pages that the infringing copies are displayed and print the source code of the infringing website.

(b.) Be sure you can prove that your website content is original and that you have owned it for a longer period of time than the infringing website.

(c.) Send a cease and desist letter to the owner of the infringing website asking it to take your material off their website.

(d.) If the owner fails to heed the Written Warning, then you may have to:

i. Send a notice of infringement to all search engines where the infringing site is listed and demand that they remove any link to the infringing site. Google allows you to report any case of website copyright infringement. The process is by submitting a legal removal request via Google’s website. Google will investigate and then decide the appropriate sanction – whether to block, remove or restrict access to the infringing website pages.

ii. Send a notice of infringement to the website hosting company or internet service provider (ISP) and demand that the infringing site be removed from the server where it is hosted.

(e.) Where all the above steps have been exploited without the expected result, a lawsuit is the last resort. Remedies available in such a lawsuit are – an order for removal of the infringing content; an injunction stopping further infringement and damages for the infringement.

Authorship and Ownership of Copyright

Authorship is a very important term in copyright. Certain rights are the exclusive reserves of the author in respect of his work. The rights of an author are of two categories, namely moral rights and economic rights.

Moral rights are personal rights which are not transferable. They are perpetual, inalienable and imprescriptible. The right to be named as the author of his work and his right to the integrity of the work such that no alteration could be made to the work without his knowledge and consent are the author’s moral rights.

Economic rights give the owner of copyright the exclusive rights to authorize or prohibit certain uses of the work to protect his pecuniary interest. For his economic benefits, only the author has the rights to publication, reproduction, distribution, adaptation, translation, rent, communication or performance to the public of his work.

In the first place, an author is the owner of his work. Ownership right is mainly economic, and unlike moral rights, they can be contracted out by way of assignment or licence by the author. Where ownership right is contracted, royalty is paid by the assignee or licensee as the case may be to the author in the manner agreed.

Duration of Rights

Copyright, like any other legal right, has limitations. The law specifies the periods within which copyright in works subsists. The durations with respect to specific works are shown in the table below:

S/N	CATEGORY OF WORKS	DURATION
1.	Literary, Musical or Artistic Works	70 years after the end of the year in which the author dies, or after the first publication in case of a government or corporate body.
2.	Cinematograph Films and Photographs	50 years after the end of the year in which the work was first published.
3.	Sound Recordings	50 years after the end of the year in which the recording was first made.
4.	Broadcasts	50 years after the end of the year in which the broadcasting first took place.

Upon expiration, the work thence goes to the public domain in which case the public has an unrestrained and unrestricted right to exploit it. Copyright can however be renewed but not by some act of emendations of text or adding a few unimportant notes to it in the case of literary work. But by alteration of the text, which must be extensive and substantial, practically making a new book.

Conclusion

By the foregoing, it is clear that there is no formal registration requirement for copyright protection in Nigeria. The responsibility of making your work worthy of copyright protection lies entirely on you. Moreso, whether your work is online content or not, there are several options that advancement in technology has provided that you can make use of to further strengthen the protection of your work from being unduly and illegally exploited by third parties. There are certain acts however that the law does not take as amounting to infringement. They fall under the limitations/defences to copyright claims. Therefore, the advice of an expert in copyright law should be sought whenever you perceive an infringement of your work or online content.

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